OKLAHOMA CITY - A man on Oklahoma's death row for the 2001 slaying of his cellmate is believed to be the first U.S. inmate set to be executed using a sedative commonly used to euthanize animals.
John David Duty is set to die at 6 p.m. Thursday (0000 GMT Friday) at the Oklahoma State Penitentiary in McAlester. A federal appeals court earlier this week upheld a judge's ruling that allows the state to substitute pentobarbital for sodium thiopental, an anesthetic normally used in the state's lethal injection formula.
A nationwide shortage of sodium thiopental led Oklahoma to alter its three-drug cocktail.
Attorneys for Duty, 58, and two other death-row inmates challenged the state's decision to use pentobarbital, arguing during a November federal court hearing that it had not been done before in executions and could be inhumane.
Jim Rowan, a veteran capital defense attorney and board member of the Oklahoma Coalition to Abolish the Death Penalty, said there is little evidence about the use of the drug on humans, and echoed concerns raised by defense attorneys that it's possible an inmate could be conscious but paralyzed when the other drugs are administered.
"No one who has been put to death has come back and testified about what it felt like," he said, adding the shortage of sodium thiopental should give states an opportunity to consider whether the death penalty is even necessary.
In Novemeber, anesthesiologist Dr. David Waisel testified that pentobarbital increases the risk that an inmate could be paralyzed but aware when the third drug that stops the heart is administered, and the third drug can cause a "very painful, very burning sensation."
But another anesthesiologist whose videotaped deposition was played in court testified that the 5,000 milligrams of pentobarbital the state plans to use is enough to cause unconsciousness and even death within minutes.
The 10th U.S. Circuit Court of Appeals on Tuesday upheld a federal judge's ruling against the other two inmates. Duty's attorney did not appeal the judge's ruling, the attorney general's office said.
Experts testified at the November hearing that no other U.S. state uses pentobarbital during executions. Oklahoma Department of Corrections spokesman Jerry Massie and the head of a Washington, D.C.-based group that has been critical of capital punishment both said in interviews Wednesday that they believed Duty would be the first inmate in the country put to death using the drug.
"In all my research, I have not seen that (pentobarbital) has been used before in this context,'" Richard Dieter, executive director of the Death Penalty Information Center, said in a telephone interview. But, he noted, "Some states don't say exactly what drugs are used and have kept that out of the public eye.'"
Oklahoma is among several states that have been scrambling after Hospira Inc. - the sole U.S. manufacturer of sodium thiopental - said a lack of raw materials had lead them to suspend production of the drug.
On Thursday, Hospira said new batches of sodium thiopental could be available "in the first quarter" of next year.
The Federal Public Defender's office declined comment on whether any last-minute appeals were in the works.
Duty was convicted of the December 2001 slaying of 22-year-old Curtis Wise. At the time, Duty was serving three life sentences for rape, robbery and shooting with intent to kill, all dating to 1978.
According to court records, Duty convinced Wise that he could get some cigarettes if Wise pretended to be his hostage so that Duty could be transferred into administrative segregation. Wise agreed to let Duty bind his hands behind his back. Duty then strangled him with a sheet, court records state.
Investigators said Duty penned a letter to Wise's mother, Mary Wise, writing, "Well by the time you get this letter you will already know that your son is dead. I know now because I just killed him an hour ago. Gee you'd think I'd be feeling some remorse but I'm not."
Duty pleaded guilty to first-degree murder. A judge rejected Mary Wise's request that Duty be sentenced to life in prison without the possibility of parole after Duty told the judge would kill again if he were returned to prison.
For his final meal, Duty requested a loaded double cheeseburger with mayonnaise; a foot-long (one-third of a meter-long) hot-dog with cheese, mustard and extra onions; a cherry limeade and a large banana shake, Massie said.
Oklahoma's next scheduled execution is Jan. 6.